CULBERTSON VS. CULBERTSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court addressed acquiescence in a judgment and the standard for modifying custody. A party who has taken advantage of the favorable provisions of a judgment or acquiesced in its terms by enforcing it will not be permitted a review; because the mother accepted a check paid under the decree and enforced other provisions, the court declined to review the original 1972 judgment. Hummel v. Roberts, 70 Nev. 225, 265 P.2d 219 (1954). Matters of custody and support of minor children rest in the sound discretion of the trial court, whose exercise will not be disturbed absent a clear abuse, with the welfare of the child the paramount consideration. NRS 125.140; Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970). It is presumed the trial court properly exercised its discretion in determining the children's best interest. The trial court found a significant change of circumstances and that the mother's continuing illicit relationship in close proximity to the children rendered her unfit and that a change of custody served the children's best interest; the record supported those findings. Toth v. Toth, 80 Nev. 33, 389 P.2d 73 (1964). Cooley v. Cooley was distinguished. The contempt assignment, unsupported by authority, was not entertained.

In plain language

When the Culbertsons divorced in February 1972, the mother received custody of the parties' four minor children, subject to a provision in the judgment that she not engage in immoral conduct in the children's presence. The father's attorney sent the mother a check required by the decree, which she cashed, and she also enforced other parts of the decree. Later in 1972, the father asked the court to hold the mother in contempt and to take custody away from her. After a hearing, the court found the mother in contempt for violating the decree and changed custody to the father. The court found she had carried on a continuing relationship with an unmarried man who stayed in her home late into the night and slept in her bedroom while the children (some old enough to be aware of it) were nearby, that this disturbed at least one child, and that the older children's schoolwork had declined. The mother appealed both the original 1972 judgment and the amended judgment. The Nevada Supreme Court declined to review the original judgment because she had accepted its benefits (cashing the check and enforcing its terms), which barred her from challenging it. On the change of custody, the court affirmed. Custody decisions are left to the trial court's sound discretion, guided by the child's welfare, and the court presumed the trial judge properly exercised that discretion. The findings that circumstances had changed, that the mother's conduct made her unfit, and that the change served the children's best interest were supported by the record. The mother's separate challenge to the contempt finding was not considered because she cited no supporting authority.